What to Expect When Facing a Court-Martial

If you are facing a Court-martial, you most likely have questions; How long are Courts-martial? What does a Court-martial mean for my career? What are my rights in a Court-martial? What should I do when I get a Court-martial?

ucmj court martial - what to expect when facing a court martial


What Exactly is a Court-Martial?

Anyone who is associated with the military could potentially face a court-martial from the Uniform Code of Military Justice (UCMJ) for committing offenses against military law. If an “accused” is found guilty, a punishment will depend on the crimes, but can often include, confinement, reduction in grade and a punitive discharge.  Any member of the armed forces can potentially be accused or end up facing trial as a result of unfortunate circumstances. A military lawyer will be required for those who risk being court-martialed.

When facing a Court-martial, you can expect the process to be a long and arduous. Investigations can drag on for several months before a decision is made. Once the investigation is concluded, a high-ranking military official will determine whether you will face Court-martial charges. The process from being charged to trial can take between 6 weeks and 6 months to process.

Military Investigators

Any uniform member being suspected of a crime has the right to have his or her rights under Article 31, UCMJ read. At this stage, the accused can ask for an attorney. Military investigators will often try to establish rapport with the accused in order to build trust. It’s important that anyone under investigation is aware that these investigators are not working in their interest and, quite the opposite, are working to wrongly convict them.

Military investigators sometimes attempt to gain information through other parties. When being investigated it is best to say as little as possible. This extends to discussing things about the potential investigation with colleagues by use of any social media, texting or email. The best course of action is to respectfully, but firmly end the conversation with the investigator, and contacting an experienced civilian defense lawyer.


Pre-Trial Procedures for a Court-Martial

Facing a Court-Martial

At this stage, the accused facing a court martial will be invited to the commander’s office, often in full-service uniform. The accused is expected to stand at attention in front of the commander with other high-ranking officials present. These officials are likely to include a First Sergeant and a supervisor as well as members from the prosecution’s legal office. A script detailing the accusation will be read out to the accused, who is expected to remain silent.

right to an attorney for court martial

Discovery

The process begins with ‘discovery’ being requested by the uniformed member’s defense attorney. This will allow attorneys to obtain documents from the prosecution which informs the defense about all the evidence. During this phase of proceedings, gathering additional exculpatory documents or declarations could heavily influence the outcome of the case. This critical evidence must always be gathering by the defense lawyer.

Motions

Motions are requests to the judge in the form of written legal documents. These legal documents might limit or completely prohibit a particular piece of evidence from being used in a trial, force the government to provide even more documents or even result in the dismissal of all the charges.

A few weeks before the trial begins, a preliminary hearing brings motions to the judge. This stage is crucial to any court-martial case and is often the focus of any subsequent appeal in the event of a conviction.

Final Preparations

The final preparations before the trial begins are comprised of witness interviews, prepping clients and deciding upon trial tactics and strategies. This period can take a lot of time to conclude.


Types of Court-Martial

There are three different types of Courts-martial which a military member may confront. When facing a court-martial, you can expect different processes and outcomes from the three different court-martial types. The Court-martial type will most significantly influence the punishment received. The three types of Courts-martial are known as a Special Court-martial, General Court-martial, and Summary Court- martial.

The type of court the criminal defendant faces is entirely out of their control. A Special Court-martial is to a General Court-martial what a misdemeanor is to a felony. Meanwhile, a Summary Court-martial is less extreme than a General Court-martial and is only employed for minor offenses.

Summary Court-Martial

If convicted of a Summary Court-martial, depending on your rank, the maximum sentence is 30 days of confinement, reduction to E-1, 45 days of unconfined hard labor and a reduced monthly wage to one third. Summary Courts- martial cannot result in discharge from the military. This type of Court-martial does not involve a judge or jury. Instead, a Summary Court Officer will oversee the evidence of the case and make the final judgment, and if convicted, will also render the sentence.

Special Court-Martial

A Special Court-martial involves a judge and a panel and takes less time than a General Court-martial. Importantly, the punishments that can be handed out from these are less severe than those from General Courts-Martial. The maximum sentence is comprised of a bad conduct discharge, 1 year of confinement, reduced wages to one third for six months, if enlisted, reduction to E-1, hard labor and restriction.

By receiving a Special Court-martial, the accused is exempt from a Dishonorable Discharge. Unanimous decisions are not required for a conviction, but at least two-thirds of the panel members must come to an agreement.

General Court-Martial

The maximum sentence in a General Court-martial is dependent on the offense committed. If there is probable cause, this will be determined by a neutral military attorney, called a preliminary hearing officer, after an Article 32 hearing. Just like a Special Court martial, a two-thirds majority is required from the panel for a conviction. This proportion is increased to three quarters if the sentence exceeds ten years of confinement.


What Decisions Need to be Made by the Defendant Facing a Court-Martial?

The military accused has four primary choices to make during the Court-martial process, which should be discussed with their attorney.

The Right to an Attorney

Anyone undergoing a Court-martial has the right to a uniformed attorney free of charge, to be provided by the military. Defendants can decide to accept this attorney or personally hire a civilian attorney alternative. It’s possible to do both.

It’s important to pick someone you feel comfortable with who you think can provide the best service. It’s recommended that when choosing an attorney to represent you, you look to someone with extensive experience in military law. In other words, a private attorney, inexperienced in military law, will not necessarily be a better choice than the free attorney provided by the military.

The Right to Plead Guilty or Not Guilty

This decision is entirely up to the military accused. They can seek guidance from their attorney, who will inform them of their opinion based on the evidence available, but it is ultimately the defendant’s choice. Defendants are told to plead not guilty if they believe themselves to be not guilty under a moral obligation. Sometimes there may be some upside to pleading guilty. To plead guilty, the uniformed defendant must be sworn in and testify to persuade the judge of their guilty plea.

By pleading guilty, the military defendant would give up their constitutional right to a trial by his or her peers, and, most notably, relieve the prosecution from proving guilt beyond a reasonable doubt.

There are a lot of things to take into consideration up when deciding on your plea. An attorney will help the accused come to an informed decision.

The Right to Remain Silent

It is advised to remain silent before a trial commences. That way, the accused does not risk jeopardizing their case. During the trial, the accused has the option to remain silent, forcing the government to prove you are guilty beyond any reasonable doubt. At this stage, the accused also has the right to testify. If taken up, their attorney will prepare them to take the stand.

At the sentencing phase, the accused once again has the choice of whether to remain silent or not. If they choose to speak, they can do so by testifying or by giving an unsworn statement that cannot be cross-examined by the prosecution team.

The Right to Decide How the Court Should be Composed

The accused has the opportunity to decide the makeup of their panel. They are able to pick from either exclusively having officers to be on the panel, or they can opt for just a judge instead.

This decision should obviously be case dependent. A technical defense may be better suited to a judge rather than a panel, for instance. It’s often thought that a panel is more likely to hand out a more lenient sentence. However, it is best to base any decisions on individual circumstances rather than generalizations.


Court-Martial Sentencing

If deemed guilty, the next phase of the Court-martial process is the sentencing. The evidence is presented to the court by the government before the defense has an opportunity to respond. This response is a chance to present any mitigating evidence that may reduce the sentence.

This can include anything that speaks to the defendant’s character or past actions that suggests they are deserving of a less severe sentence. The prosecution team can then rebut any evidence presented. After this, the panel must make up their minds and come to an agreement. If the sentence includes confinement, the guilty party will be taken into custody upon the ending of the trial. At this stage, they will also be tested for drugs.

How Long Does the Court-Martial Process Last?

From jury selection to sentencing, a court-martial trial will usually last between two and six days. However, the whole process is a lot longer than just the trial.

Investigations can last for months before a decision is reached to take the case to court. From then, it will take anywhere from one to six weeks before the trial begins.

How Expensive is the Court-Martial Process?

Unsurprisingly, there is not a standard price for a court-martial case. Free attorneys are provided by the government, but if the military defendant chooses to hire a private attorney, then legal fees are likely to take place.

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Want to Know More About What to Expect when Facing a Court-Martial?

The attorneys at Court & Carpenter are willing to discuss with you your court-martial case and your needs for representation. Please contact us for more information. And remember, when being investigated it is best to say as little as possible until you speak to your representing attorney.

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U.S. Air Force

Our aggressive defense of Air Force members has always been dedicated “to the warriors who go forth [into the skies] to find and defeat our nation’s enemies.” American Fighter Pilots I have been defending these men and women in blue since watching a “friendly” game of crud one night in Ramstein, Germany. It is always an enormous pleasure to immerse oneself into the technical complexities that Air Force careers demand. Over the years we have defended pilots, security forces and, of course, folks on the flight line.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: U.S. Air Force courts-martial are unique in their application of Rules for Courts-Martial 801(b)(2)(c) and Military Rules of Evidence 614 in having its judges proactively inviting panel (“jury”) members to ask for additional evidence, after trial and defense counsel rest, but before starting deliberations on the verdict.

U.S. Army

As a former U.S. Army JAG, I fondly recall the hard work, deployments and duties. Above them all, General David Petraeus is an American hero, and he, like many former U.S. Army Generals, have left an indelible legacy on what it means to serve. There is plenty to do. The U.S. Army leads the way, every year, in the number of courts-martial. Its legal experts are brilliant, and as such, have been tasked with training the other military branches, at the University of Virginia, on the rules, procedures and regulations applicable to military justice.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: U.S. Army military judges will not provide the “unsworn statement instruction” during presentencing should the accused wish to waive it; which is typically a good tactical decision. The other services will commonly provide it, however, even if the accused says no. Additionally, this service does a fine job of tailoring fines to offset confinement as detailed in Rules for Courts-Martial 1003.

U.S. Coast Guard

The Coast Guard is a fabulous service. These cases can take one to some far-off places around the United States, as Coast Guard bases are relatively small, and can also be rather isolated. Ultimately, despite some issues, its members have an uncanny knack for finding justice, such as in three notable cases our firm defended U.S. v. Daly, U.S. v. Cooley, and U.S. v. Riesbeck.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: This is the only service that allows the command to initiate involuntary separation even after someone is fully acquitted at court-martial. Over the past five years the U.S. Coast Guard has finally began detailing U.S. Coast Guard members to U.S. Coast Guard courts-martial, prior to that, the only non-Coast Guard members in the entire courtroom was the defense lawyer Navy JAG and yours truly. Put simply, it is nice to now see an even mix of uniforms.

U.S. Navy

It may be all that time underway, but I truly believe Sailors have the best sense of humor of the lot. It is always a distinct honor to represent officers, senior and junior enlisted Sailors. Even more, this service is likely the most practical in handling military justice cases. In other words, while the other services may occasionally seek to over emphasize certain aspects of a court-martial, U.S. Navy JAGs are fabulous at cutting to the root of the matter. It is also an added advantage that U.S. Navy Defense Service Office (DSO) JAGs have their own private investigator working in their office, no other branch of service has such a great resource on staff.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: Naval Prosecutors are particularly adept at negotiating pretrial agreements. They rely heavily on the concept of “probation” as Rules for Court-martial 1109 describes. On the other hand, Captain Masts can be a difficult hurdle when a Sailor is attached to a vessel, as trial by court-martial cannot be demanded.

U.S. Marine Corps

I served several months as a U.S. Marine Corps JAG, most memorably at Camp Pendleton. These are men and women that are not only mentally fit, they are equally physically and spiritually superb. It is always a distinct honor to be in these courts. Additionally, as an aside, I consider the U.S. Marines and U.S. Army to be related, like distant cousins, because their courts-martial panels (“juries”) have the same tendency to render relatively lenient sentences. Put simply, these two services, more than the others, seem to share a common bond of what it truly means to be in harm’s way, and accused who have been to combat undoubtedly benefit from this notion.

Whatever your rank, worldwide location, charged offense, or circumstance, your invaluable life, or the life of your loved one, deserves more than just a competent legal defense.

Nuance: Marines stationed overseas seemingly remain, among all the services, to be the most vulnerable to overseas law enforcement sting-operations.

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Court-Martial Defense

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